-
FDIC 1212/03 (6-99)
TYPE AND NUMBER Circular 3700.16 CONTACT TELEPHONE NUMBER
Elizabeth A. Walker 703-562-6295 DATE August 22, 2008 DATE OF
CANCELLATION (Bulletins Only)
TO:
All FDIC Divisions and Offices
FROM:
Arleas Upton Kea Director, Division of Administration
SUBJECT:
FDIC Acquisition Policy Manual (APM)
1. Purpose
To establish new policies and procedures for the acquisition of
goods and services by the Division of Administration, Acquisition
Services Branch (ASB) in support of FDIC requirements.
2. Revision
FDIC Circular 3700.16, FDIC Acquisition Policy Manual, Revision
3, dated May 31, 2004, is hereby revised and superseded.
3. Scope
The policies and procedures in this APM, and the accompanying
Procedures, Guidance, and Information (PGI) apply to all
procurement actions awarded in the corporate, receivership, or
conservatorship capacity by the Division of Administration,
Acquisition Services Branch, and to actions accomplished under the
FDIC Purchase Card Program.
4. Applicability
The policy and procedures in this APM, and the supplemental PGI
document, apply to: a. Contracting Officers and other ASB personnel
involved with procuring goods and services on behalf of the
Corporation; b. Oversight Managers and Technical Monitors involved
with monitoring contractor performance; c. FDIC Cardholders and
Approving Officials, and d. Other Division and Office personnel
that participate in any aspect of the procurement process.
FEDERAL DEPOSIT INSURANCE CORPORATION
DIRECTIVE SYSTEM
1/13/2015, 5/15/2014, 3/6/2014, 05/11/2017, and 06/13/2019
*Pedestrian changes made to the directive appear in blue ink.
-
Circular 3700.16 2 August 22, 2008
5. Summary of Changes
See Overview of the Acquisition Policy Manual (APM) and the
Procedures, Guidance, and Information (PGI) Document for
changes.
6. Additional Information
Questions regarding the information contained in this manual or
the PGI may be directed to the Assistant Director, Policy and
Systems Section, Acquisition Services Branch, Division of
Administration at (703) 562-6295.
7. Effective Date
The provisions outlined in this circular are effective
immediately.
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Overview of the Acquisition Policy Manual (APM) and the
Procedures, Guidance, and Information (PGI) Document
The APM is being issued as a corporate directive, with a
supplemental procedures, guidance, and information document
maintained outside the directives system. The APM will remain the
official policy document, with the PGI implementing and
supplementing the APM by providing procedures, guidance, and
information. Therefore, the APM and PGI located at
http://www.fdic.gov/buying/goods/acquisition/index.html must be
read concurrently. The APM and PGI present information in six
modules, with contract clauses found in Module 7 of the PGI. These
include:
Module 1 - Guiding Principles, authority, Ethics, and Controls
Module 2 - Acquisition Planning and Competition Module 3 -
Contracting Methods and Types Module 4 - Special Categories of
Contracting Module 5 - General Contracting Requirements Module 6 -
Contract Management and Oversight Module 7 - Contract Clauses and
Solicitation Provisions (PGI only)
Additionally, the PGI has four appendices, including:
Appendix A - Acronyms Appendix B - Approvals Memorandum and
Matrix Appendix C - FDIC Purchase Card Guide, which may be used as
a stand-alone document Appendix D – Record of PGI Changes
Both documents contain hyperlinks to forms, template,
directives, and other information. In addition to this change in
format of the APM and PGI, policies and procedures for several
major topic areas have been added or revised, including:
1. A discussion of controls against personal services contracts
and inherently governmental functions
2. Introduction of a new contract type, Receivership Basic
Ordering Agreements 3. Implementation of formal procedures for the
use of task assignments 4. Procedures for emergency and expedited
contracting in support of potential financial
institution failures 5. Procedures for contracting in emergency
situations 6. A discussion of special issues surrounding
Receivership contracting 7. Performance Based Acquisitions 8.
Protection of Sensitive Information 9. Fitness and integrity
certification process for prime and subcontractors 10. Buy American
Act and the Trade Agreements Act of 1979 11. Legal review of
acquisition documents and contract actions 12. The use of contract
clauses and solicitation provisions versus contract standard
documents and general provisions 13. Oversight Manager/Technical
Monitor nomination and appointment process
http://www.fdic.gov/buying/goods/acquisition/index.html
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Federal Deposit Insurance Corporation
Acquisition Policy Manual
August 2008
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Acquisition Policy Manual
Circular 3700.16 August 22, 2008 APM i
TABLE OF CONTENTS
MODULE 1: GUIDING PRINCIPLES, AUTHORITY, ETHICS, AND CONTROLS
.................................................................................
1-1
APM Chapter 1.1 Guiding Principles
.......................................................... 1-1
1.101 Scope
............................................................................................
1-1 1.102 Definitions
.....................................................................................
1-1 1.103 Key
Attributes................................................................................
1-1 1.104 Key Policies
..................................................................................
1-2
APM Chapter 1.2 Authority
..........................................................................
1-3 1.201 Scope
............................................................................................
1-3 1.202 Definitions
.....................................................................................
1-3 1.203 Procurement Policy
.......................................................................
1-3 1.204 Application of Procurement Policy
................................................ 1-3 1.205
Modification of Procurement Policy
............................................... 1-4 1.206
Contracting Authority
....................................................................
1-4 1.207 Operating Capacities
....................................................................
1-5 1.208 Application of Federal Statutes to the FDIC
Contracting
Program
.....................................................................................
1-6 1.209 Contracting Officer Authority
....................................................... 1-10 1.210
Oversight Managers and Technical Monitors
.............................. 1-11 1.211 Unauthorized Contractual
Commitments .................................... 1-11 1.212
Purchase Card Authority
.............................................................
1-12
*1.213 Conduct of Business by Electronic Means
.................................. 1-12*
APM Chapter 1.3 Ethics
.............................................................................
1-13 1.301 Scope
..........................................................................................
1-13 1.302 Definitions
...................................................................................
1-13 1.303 Ethics
Policy................................................................................
1-13 1.304 Minimum Standards of Contractor Integrity and Fitness
............. 1-13 1.305 Disqualifying Conditions
.............................................................. 1-13
1.306 Conflicts of Interest
.....................................................................
1-14 1.307 Suspension and Exclusion of Contractors
.................................. 1-14 1.308 Other Consequences
for Violation of Part 366 ............................ 1-15 1.309
Roles and Responsibilities - Contractor Integrity and
Fitness Review
........................................................................
1-15 1.310 Roles and Responsibilities – Contractor Suspension
and
Exclusion
.................................................................................
1-15 1.311 Standards of Conduct for FDIC Employees
................................ 1-16 1.312 Duty of Non-Disclosure
...............................................................
1-16
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Circular 3700.16 August 22, 2008 APM ii
APM Chapter 1.4 Controls against Personal Services Contracts and
Inherently Governmental Functions
......................................................... 1-17
1.401 Scope
..........................................................................................
1-17 1.402 Definitions
...................................................................................
1-17 1.403 Contracts for Performance of Personal Services and
Inherently Governmental Functions Policy
.............................. 1-17 1.404 Personal Services
Contracts .......................................................
1-17 1.405 Inherently Governmental Functions
............................................ 1-20
MODULE 2: ACQUISITION PLANNING AND COMPETITION...... 2-1
APM Chapter 2.1 Acquisition Planning
...................................................... 2-1 2.101
Scope
............................................................................................
2-1 2.102 Definitions
.....................................................................................
2-1 2.103 Acquisition Planning Policy
........................................................... 2-1
2.104 Early Acquisition Planning
............................................................ 2-1
2.105 Market Research
...........................................................................
2-1 2.106 Acquisition Plan Documentation
................................................... 2-2 2.107
Requirements Package
.................................................................
2-2 2.108 Socioeconomic Programs
.............................................................
2-2
APM Chapter 2.2 Competition
.....................................................................
2-4 2.201 Scope
............................................................................................
2-4 2.202 Definitions
.....................................................................................
2-4 2.203 Competition Policy
........................................................................
2-5 2.204 Contract Bundling
.........................................................................
2-5 2.205 Prohibition on Splitting Requirements
........................................... 2-7 2.206
Non-Competitive Acquisitions
....................................................... 2-7
MODULE 3: CONTRACTING METHODS AND TYPES ................ 3-1
APM Chapter 3.1 Simplified Procurement
.................................................. 3-1 3.101 Scope
............................................................................................
3-1 3.102 Definitions
.....................................................................................
3-1 3.103 Simplified Procurement Policy
...................................................... 3-1 3.104
Competition in Simplified Procurements
....................................... 3-2 3.105 Identifying
Potential Sources
........................................................ 3-2 3.106
Request for Quotation
...................................................................
3-2 3.107 Communications with Offerors
...................................................... 3-3 3.108
Receipt of Quotations
...................................................................
3-3 3.109 Evaluation of Quotations
............................................................... 3-3
3.110 Contract Award
.............................................................................
3-3 3.111 Simplified Procurement Award Types
........................................... 3-4
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Circular 3700.16 August 22, 2008 APM iii
APM Chapter 3.2 Formal Contracting
......................................................... 3-5 3.201
Scope
............................................................................................
3-5 3.202 Definitions
.....................................................................................
3-5 3.203 Formal Contracting Policy
............................................................. 3-6
3.204 Competition in Formal Contracting
................................................ 3-6 3.205
Identifying Potential Sources
........................................................ 3-6 3.206
Source Selection Planning
............................................................ 3-7
3.207 Technical Evaluation Panel
........................................................... 3-7
3.208 Request for Proposals
..................................................................
3-8 3.209 Receipt of Proposals
.....................................................................
3-8 3.210 Proposal Evaluation
....................................................................
3-10 3.211 Communications with Offerors
.................................................... 3-11 3.212
Competitive Range Determination
.............................................. 3-11 3.213 Best and
Final Offers
..................................................................
3-12 3.214 Documenting the Source Selection Decision
.............................. 3-12 3.215 Contract Award
...........................................................................
3-13 3.216 Notification to Unsuccessful Offerors and Debriefings
................ 3-13 3.217 Contract Types and Pricing Arrangements
................................. 3-13
APM Chapter 3.3 Other Contracting Methods
......................................... 3-14 3.301 Scope
..........................................................................................
3-14 3.302 Definitions
...................................................................................
3-14 3.303 Other Contracting Methods Policy
.............................................. 3-14 3.304 Purchases
from Mandatory Sources ...........................................
3-16 3.305 Federal Supply Schedule Contracts
............................................ 3-17
APM Chapter 3.4 Contracting in Support of Potential Financial
Institution Failures
.......................................................................................................
3-18
3.401 Scope
..........................................................................................
3-18 3.402 Definitions
...................................................................................
3-18 3.403 Contracting in Support of Potential Financial
Institution
Failures Policy
.........................................................................
3-19 3.404 Notification
..................................................................................
3-19 3.405 Use of Existing Contracts and Purchase Cards/
Convenience Checks
...............................................................
3-19 3.406 Expedited Contracting Policy
...................................................... 3-20 3.407
Emergency Contracting Policy
.................................................... 3-20 3.408
Contracting Policy Applicable to both Expedited and
Emergency Contracting
........................................................... 3-20
3.409 Advance Authorization Letter
...................................................... 3-21 3.410
The Formal Contract
...................................................................
3-21 3.411 File Documentation
.....................................................................
3-21
APM Chapter 3.5 Contracting in Emergency Situations
......................... 3-22 3.501 Scope
..........................................................................................
3-22 3.502 Definitions
...................................................................................
3-22
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3.503 Contracting in Emergency Situations Policy
............................... 3-22 3.504 Planning for Contracting
in Emergency Situations ...................... 3-23 3.505
Notification of Emergency
........................................................... 3-23
3.506 Modified Procedures and Authorities
.......................................... 3-23 3.507 Advance
Authorization Letter
...................................................... 3-23 3.508
Short Term Manual Operations
................................................... 3-24 3.509
Emergency Contracting Kits
....................................................... 3-24 3.510
Receipt and Acceptance of Goods and Services
........................ 3-24 3.511 Documenting Contracting Actions
............................................... 3-24 3.512
Restoring Normal
Operations......................................................
3-24
APM Chapter 3.6 Receivership Contracting – Special Issues
................ 3-25 3.601 Scope
..........................................................................................
3-25 3.602 Definitions
...................................................................................
3-25 3.603 Receivership Contracting Policy
................................................. 3-25 3.604
Subsidiary Contracting Policy
..................................................... 3-25 3.605
Contracts Entered into by Failed Financial Institutions
............... 3-25
MODULE 4: SPECIAL CATEGORIES OF CONTRACTING .......... 4-1
APM Chapter 4.1 Performance-Based
Acquisition.................................... 4-1 4.101 Scope
............................................................................................
4-1 4.102 Definitions
.....................................................................................
4-1 4.103 Performance-Based Acquisition Policy
......................................... 4-1 4.104
Performance-Based Management
................................................ 4-2
APM Chapter 4.2 Acquisition of Information Technology
........................ 4-4 4.201 Scope
............................................................................................
4-4 4.202 Definitions
.....................................................................................
4-4 4.203 Information Technology Acquisition Policy
.................................... 4-4 4.204 Earned Value
Management
.......................................................... 4-4
APM Chapter 4.3 Construction Contracting
.............................................. 4-6 4.301 Scope
............................................................................................
4-6 4.302 Definitions
.....................................................................................
4-6 4.303 Construction Contracting Policy
.................................................... 4-6
MODULE 5: GENERAL CONTRACTING REQUIREMENTS ........ 5-1
APM Chapter 5.1 Protection of Sensitive Information
.............................. 5-1 5.101 Scope
............................................................................................
5-1 5.102 Definitions
.....................................................................................
5-1 5.103 Protection of Sensitive Information Policy
..................................... 5-2 5.104 Sensitive
Information and Confidentiality Agreements Policy ....... 5-2 5.105
Application of the Privacy Act
....................................................... 5-3
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Circular 3700.16 August 22, 2008 APM v
5.106 Protection of Contractor Proposals and Source Selection
Information
................................................................................
5-4
5.107 Freedom of Information
Act........................................................... 5-6
APM Chapter 5.2 Security
............................................................................
5-7
5.201 Scope
............................................................................................
5-7 5.202 Definitions
.....................................................................................
5-7 5.203 Contract Security Policy
................................................................
5-7
APM Chapter 5.3 Compliance with Section 508 of the
Rehabilitation Act of 1973 (29 U.S.C. 794d)
...............................................................................
5-9
5.301 Scope
............................................................................................
5-9 5.302 Definitions
.....................................................................................
5-9 5.303 Section 508 Compliance
Policy..................................................... 5-9
APM Chapter 5.4 Intellectual Property
..................................................... 5-11 5.401
Scope
..........................................................................................
5-11 5.402 Definitions
...................................................................................
5-11 5.403 Intellectual Property Rights Policy
............................................... 5-11 5.404 Rights
in Data and Copyrights
.................................................... 5-12
APM Chapter 5.5 Options
..........................................................................
5-13 5.501 Scope
..........................................................................................
5-13 5.502 Definitions
...................................................................................
5-13 5.503 Options Policy
.............................................................................
5-13
APM Chapter 5.6
Subcontracting..............................................................
5-14 5.601 Scope
..........................................................................................
5-14 5.602 Definitions
...................................................................................
5-14 5.603 Subcontracting Policy
.................................................................
5-14
APM Chapter 5.7 Incentive Contracting
................................................... 5-18 5.701
Scope
..........................................................................................
5-18 5.702 Definitions
...................................................................................
5-18 5.703 Incentive Contracting Policy
........................................................ 5-18
APM Chapter 5.8 Bonds and Insurance
................................................... 5-20 5.801
Scope
..........................................................................................
5-20 5.802 Definitions
...................................................................................
5-20 5.803 Bonds and Insurance
Policy........................................................ 5-20
5.804 Bonds
..........................................................................................
5-21 5.805 Insurance
....................................................................................
5-22 5.806 Indemnification
............................................................................
5-24
APM Chapter 5.9 Taxes
..............................................................................
5-25 5.901 Scope
..........................................................................................
5-25 5.902 Definitions
...................................................................................
5-25 5.903 Tax Policy
...................................................................................
5-25
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Circular 3700.16 August 22, 2008 APM vi
APM Chapter 5.10 Warranties
...................................................................
5-26 5.1001 Scope
........................................................................................
5-26 5.1002 Definitions
.................................................................................
5-26 5.1003 Warranty Policy
.........................................................................
5-26 5.1004 Criteria for Use of Warranties
.................................................... 5-26 5.1005
Custom Warranty Clauses
........................................................ 5-26
5.1006 Warranty Implementation Policy
............................................... 5-28
APM Chapter 5.11 Labor Laws - Service Contract Act and
Davis-Bacon Act
...............................................................................................................
5-29
5.1101 Scope
........................................................................................
5-29 5.1102 Definitions
.................................................................................
5-29 5.1103 Service Contract Act Policy
....................................................... 5-30 5.1104
Davis-Bacon Act Policy
.............................................................
5-30
APM Chapter 5.12 Buy American Act; Trade Agreements Act of 1979
. 5-31 5.1201 Scope
........................................................................................
5-31 5.1202 Definitions
.................................................................................
5-31 5.1203 Buy American Act 41 USC §10a - 10d et seq. Policy
............... 5-31 5.1204 Trade Agreements Act. of 1979 - 19 USC
§2501 et seq.
Policy
.......................................................................................
5-31 5.1205 Interplay of the Buy American Act and the Trade
Agreements Act in Goods Contracts
....................................... 5-32 APM Chapter 5.13
Contract Payment
....................................................... 5-34
5.1301 Scope
........................................................................................
5-34 5.1302 Definitions
.................................................................................
5-34 5.1303 Contract Payment Policy
........................................................... 5-34
5.1304 Invoices
.....................................................................................
5-38 5.1305 Prompt Payment Act
.................................................................
5-38
APM Chapter 5.14 Protests, Claims, Disputes and Appeals
.................. 5-42 5.1401 Scope
........................................................................................
5-42 5.1402 Definitions
.................................................................................
5-42 5.1403 Protest Policy
............................................................................
5-42 5.1404 Claims, Disputes and Appeals Policy
........................................ 5-44
APM Chapter 5.15 Legal Review of Acquisition Documents and
Contract Actions
........................................................................................................
5-48
5.1501 Scope
........................................................................................
5-48 5.1502 Definitions
.................................................................................
5-48 5.1503 Legal Review Policy
..................................................................
5-48 5.1504 Contracting Officer Responsibilities
.......................................... 5-50 5.1505 Contracting
Law Unit Responsibilities .......................................
5-51
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Circular 3700.16 August 22, 2008 APM vii
MODULE 6: CONTRACT MANAGEMENT AND ADMINISTRATION
....................................................................................................
6-1
APM Chapter 6.1 FDIC Automated Procurement System
......................... 6-1 6.101 Scope
............................................................................................
6-1 6.102 Definitions
.....................................................................................
6-1 6.103 FDIC Automated Procurement System Policy
.............................. 6-1
APM Chapter 6.2 Contract File Management
............................................. 6-2 6.201 Scope
............................................................................................
6-2 6.202 Definitions
.....................................................................................
6-2 6.203 Contract File Management Policy
................................................. 6-2
APM Chapter 6.3 Contract Reporting
......................................................... 6-3 6.301
Scope
............................................................................................
6-3 6.302 Definitions
.....................................................................................
6-3 6.303 Contract Reporting Policy
.............................................................
6-3
APM Chapter 6.4 Contract Administration and Oversight Management
. 6-5 6.401 Scope
............................................................................................
6-5 6.402 Definitions
.....................................................................................
6-5 6.403 Contract Administration and Oversight Management Policy
......... 6-5 6.404 Contract Management Plan
.......................................................... 6-6
6.405 Nomination and Appointment of Oversight Manager and
Technical Monitor
......................................................................
6-6 6.406 Post-Award Conference
................................................................
6-8 6.407 Oversight Manager Responsibilities
.............................................. 6-8 6.408 Monitoring
Contract Performance
................................................. 6-8 6.409
Ratification of Unauthorized Contractual Commitments
................ 6-9
APM Chapter 6.5 Contract Modifications
................................................. 6-10 6.501 Scope
..........................................................................................
6-10 6.502 Definitions
...................................................................................
6-10 6.503 Contract Modification Policy
........................................................ 6-11 6.504
Types of Contract Modifications
.................................................. 6-11 6.505
Constructive Changes
.................................................................
6-12 6.506 Consent-to-Assignment: Novation
.............................................. 6-12 6.507
Assignment of Claims
.................................................................
6-12 6.508 Stop Work Orders
.......................................................................
6-13
APM Chapter 6.6 Contract Termination
.................................................... 6-14 6.601
Scope
..........................................................................................
6-14 6.602 Definitions
...................................................................................
6-14 6.603 Termination Policy
......................................................................
6-14 6.604 Termination for Convenience
...................................................... 6-14 6.605
Termination for Default
...............................................................
6-15
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Circular 3700.16 August 22, 2008 APM viii
APM Chapter 6.7 FDIC-Furnished Property
............................................. 6-16 6.701 Scope
..........................................................................................
6-16 6.702 Definitions
...................................................................................
6-16 6.703 FDIC-Furnished Property Policy
................................................. 6-16 6.704
Contracting Officer Responsibilities
............................................ 6-17 6.705 Oversight
Manager Responsibilities
............................................ 6-17 6.706 Transfer of
FDIC Property to the Contractor ...............................
6-17 6.707 Property Disposition Options
...................................................... 6-18
APM Chapter 6.8 Contract Closeout
......................................................... 6-19
6.801 Scope
..........................................................................................
6-19 6.802 Definitions
...................................................................................
6-19 6.803 Contract Closeout Policy
............................................................. 6-19
6.804 Disposition of Contract Files
....................................................... 6-19
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Circular 3700.16 August 22, 2008 APM 1-1
MODULE 1: GUIDING PRINCIPLES, AUTHORITY, ETHICS, AND CONTROLS
APM Chapter 1.1 Guiding Principles 1.101 Scope This chapter covers
the guiding principles of the Federal Deposit Insurance Corporation
(FDIC) Acquisition Policy Manual (APM) and the associated
Procedures, Guidance and Information (PGI) document, and how these
affect the FDIC acquisition process. 1.102 Definitions Acquisition
Team – Consists of the Contracting Officer; supporting Contract
Specialists and other support staff in the Acquisition Services
Branch (ASB); the responsible officials of the Program Office,
particularly including the Oversight Manager and Technical Monitor;
the Legal Division{ XE "Legal Division" } Contracting Law Unit{ XE
"Contracting Law Unit (see also CLU)" } (CLU{ XE "CLU (see also
Contracting Law Unit)" }); and, as appropriate, the supporting
officials and staff of the Office of Minority and Women Inclusion{
XE "Office of Diversity and Economic Opportunity (see also ODEO)" }
and the ASB, Policy and Systems Section staff. 1.103 Key Attributes
There are five key attributes of professional acquisition
management that are promoted throughout the APM. These key
attributes are:
(1) Effectiveness: The timely and cost-effective procurement of
goods and services that work well for the customer;
(2) Flexibility: The ability to make good decisions based on
best practices for particular circumstances, rather than rigid
adherence to standard procedures;
(3) Efficiency: Simple processes that achieve good results
without undue oversight or waste of resources;
(4) Responsibility: The role of each member of the FDIC
Acquisition Team is to exercise personal initiative and sound
business judgment; and
(5) Public Trust: Achieved through fairness and open and honest
communications with contractors and the public.
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Acquisition Policy Manual
Circular 3700.16 August 22, 2008 APM 1-2
1.104 Key Policies The policies set forth in the APM apply to
all members of the FDIC Acquisition Team, including ASB and Program
Office personnel, as well as the clients they serve and the
contractors who provide the goods and services. These policies
allow FDIC to:
(1) Establish reasonable competition{ XE "competition" } as the
preferred method of source selection;
(2) Enable innovative and creative tailoring of procurement
processes to meet individual requirements, so that the right
contractor is selected for each requirement;
(3) Select contractors on the basis of the best value{ XE "best
value" } to FDIC;
(4) Strive to provide small disadvantaged businesses{ XE "small
disadvantaged businesses" } and minority and women-owned
businesses{ XE "minority and women-owned business (see also MWOB)"
} with attainable and reasonable opportunities to participate as
contractors and subcontractors; and
(5) Resolve protests and contract disputes{ XE "disputes" }
fairly and expeditiously at the lowest level possible.
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Acquisition Policy Manual
Circular 3700.16 August 22, 2008 APM 1-3
APM Chapter 1.2 Authority 1.201 Scope This chapter covers the
parameters of FDIC contracting authority, describes the contracting
capacities unique to FDIC, details those federal statutes and
regulations that apply and do not apply to FDIC contracting, and
describes Contracting Officer authority and responsibilities. 1.202
Definitions Board of Directors{ XE "Board of Directors" } – The
governing body of FDIC, empowered to elect and appoint officers and
agents to act on matters on behalf of, and affecting, the
corporation. Ratification{ XE "ratification" } – The act of
approving an unauthorized commitment by an official who has the
authority to do so. Unauthorized Commitment – An agreement that is
not binding solely because the government representative who made
it lacked the authority to enter into that agreement on behalf of
the government. 1.203 Procurement Policy The APM establishes the
procurement policy of FDIC. The procedures used to implement the
policy and to conduct the business of contracting with the private
sector for goods and services are set out in the accompanying FDIC
Procedures, Guidance, and Information (PGI) document. Additionally,
the FDIC ASB, Policy and Systems Section, provides interim policy
as required, and other tools as appropriate, to keep the FDIC
Acquisition Team fully informed and supported. 1.204 Application of
Procurement Policy The FDIC procurement policy applies to all
acquisitions of goods and services by the Corporation, acting in
its various capacities, except:
(1) Acquisitions by the Office of Inspector General{ XE "Office
of Inspector General (see also OIG)" }, which are governed by the
Inspector General Act of 1978, as amended;
(2) Acquisition of legal services by the Legal Division{ XE
"Legal Division" }, which has independent contracting
authority;
(3) Leasing of office and warehouse space by the Corporate
Services Branch of the Division of Administration{ XE "Division of
Administration (see also DOA)" } (DOA{ XE "DOA (see also Division
of
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Acquisition Policy Manual
Circular 3700.16 August 22, 2008 APM 1-4
Administration)" }), which is governed by the Leasing Policy
Manual; and
(4) Establishment of depository accounts at financial
institutions by the Chief Financial Officer{ XE "Chief Financial
Officer" }, including setting the terms of the accounts, such as
the designation of signatories, acquiring ancillary services for
the processing of receipts and disbursements, and purchasing and
selling investments.
Interagency agreements{ XE "interagency agreement (see also
IAA)" } (IAA{ XE "IAA (see also interagency agreement)" }) and
memoranda of understanding (MOU){ XE "memoranda of understanding
(MOU)" } are not addressed in this manual. Guidance on IAAs and
MOUs is addressed in FDIC Circular 3800.10, Memoranda of
Understanding and Interagency Agreements, which is available at
https://fdicnet.fdic.gov/content/doa/home/rim/directives/directives-3000.html.
1.205 Modification of Procurement Policy Modifications and
revisions to the APM are effected by corporate{ XE "contracting
capacity - corporate" } directives issued by the DOA{ XE "DOA (see
also Division of Administration)" } Director. The ASB Deputy
Director, DOA{ XE "DOA (see also Division of Administration)" }, is
authorized to approve one-time deviations{ XE "deviation" } to
policy and to issue interim policy memoranda when policies are
permanently revised, pending issuance of a revision of the APM.
Suggestions for modification of procurement policy should be
directed to the ASB Assistant Director, Policy and Systems Section.
1.206 Contracting Authority The Federal Deposit Insurance Act{ XE
"Federal Deposit Insurance Act (see also FDI Act)" } (FDI Act{ XE
"FDI Act (see also Federal Deposit Insurance Act)" }) –12 U.S.C. §
1819 et seq., empowers FDIC to enter into contracts for goods or
services with private sector firms. The FDI Act{ XE "FDI Act (see
also Federal Deposit Insurance Act)" } authorizes FDIC to establish
policies and procedures to administer the powers granted to it,
including the power to enter into contracts. The FDIC Board of
Directors{ XE "Board of Directors" } has delegated the authority to
establish policies and procedures for the contracting program to
the DOA{ XE "DOA (see also Division of Administration)" } Director.
The delegations appoint the DOA{ XE "DOA (see also Division of
Administration)" } Director as the FDIC Chief Contracting Officer,
with authority to develop contracting policy; solicit proposals;
and enter into, modify, and terminate contracts on behalf of FDIC
in any of its capacities. The DOA{ XE "DOA (see also Division of
Administration)" } Director, in turn, delegates this authority to
the ASB Deputy Director. This includes the authority
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to appoint Contracting Officers. The ASB Deputy Director
re-delegates authority to issue Purchase Card (P-Card) Appointment
Letters to the ASB Assistant Director, Policy and Systems Section,
and the FDIC P-Card Program Agency Coordinator. The authority to
contract on behalf of FDIC is only granted to individuals who have
been appointed as Contracting Officers, or who have been appointed
as FDIC P-Card holders. Any FDIC employee who solicits proposals or
enters into, modifies, or terminates contracts without the
delegated contracting authority to do so, is acting outside the
scope of their authority. Within DOA{ XE "DOA (see also Division of
Administration)" }, ASB is responsible for issuing the policies
governing the contracting program and the procedures for
implementing those policies. 1.207 Operating Capacities FDIC
operates in three distinct capacities: corporate{ XE "contracting
capacity - corporate" }, receivership{ XE "contracting capacity -
receivership" } and conservatorship{ XE "contracting capacity -
conservatorship" }. The specific capacity in which FDIC is
operating when it enters into a contract for goods or services must
be stated in the contract and the contract must be executed in that
capacity. 1.207(a) Corporate Capacity In its corporate{ XE
"contracting capacity - corporate" } capacity, FDIC conducts all
its main functions, except those associated with the resolution of
failed financial institutions. Thus, the majority of contracts are
entered into by FDIC in its corporate{ XE "contracting capacity -
corporate" } capacity. Examples of this type of contract are
contracts for information technology, office supplies, furniture,
delivery services, library services and construction services.
1.207(b) Receivership Capacity In its receivership{ XE "contracting
capacity - receivership" } capacity, FDIC becomes an organizational
entity appointed to wind up the affairs of a failed insured
depository institution by managing and liquidating its assets,
collecting monies due, and paying its creditors. FDIC as receiver
succeeds to all the rights, titles, powers, and privileges of the
institution and its stockholders. In this capacity, FDIC contracts
for the purpose of fulfilling its receivership{ XE "contracting
capacity - receivership" } responsibilities, i.e., to perform
liquidation activities of receivership{ XE "contracting capacity -
receivership" } assets and to complete the business of closed
institutions. 1.207(c) Conservatorship Capacity In its
conservatorship{ XE "contracting capacity - conservatorship" }
capacity, FDIC becomes an organizational entity appointed to
preserve the assets of a
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depository institution for the benefit of the depositors and
other creditors. The conservator takes possession of the books,
records, liabilities and assets of the institution, and takes
whatever action is necessary to preserve the business of the
institution as a going concern. In this capacity, FDIC contracts
for the sole purpose of fulfilling its conservatorship{ XE
"contracting capacity - conservatorship" } responsibilities on
behalf of an open institution that is operating under FDIC
management and control. Contracts are likely to include those for
the performance of day-to-day operations or asset management and
disposition. 1.208 Application of Federal Statutes to the FDIC
Contracting Program 1.208(a) Overview As part of acquisition
planning, the Contracting Officer and Program Office must decide
which of the several federal laws that apply to the FDIC
procurement program apply to their particular requirement. For
instance, does the acquisition require application of the Service
Contract Act{ XE "Service Contract Act (see also SCA)" }, the Trade
Agreements Act{ XE "Trade Agreements Act of 1979" }, or Section 508
of the Rehabilitation Act{ XE "Section 508 of the Rehabilitation
Act of 1973" }? Refer to PGI 1.208, Application of Federal Statutes
to the FDIC Contracting Program, for discussion of the scope of the
federal laws and their application to particular procurements;
refer to Module 5 for in-depth coverage of the procedures to follow
to comply with those federal laws the Contracting Officer
encounters most frequently in fulfilling FDIC acquisitions.
1.208(b) Non-Applicable Statutes and Regulations The federal
statutes and regulations that establish government procurement
policies and procedures and govern procurement by agencies funded
through congressional appropriations do not apply to FDIC. Among
these are:
(1) Federal Procurement Policy Act – 41 USC §402; (2)
Competition in Contracting Act of 1984 – 40 USC §472 et seq.; (3)
Federal Acquisition Streamlining Act of 1994 – Public Law 103-
355,108 Stat. 3245; (4) Contract Disputes{ XE "disputes" } Act –
41 USC §601; (5) Tucker Act – 28 USC §1419(a); and (6) Federal
Acquisition Regulation{ XE "Federal Acquisition Regulation
(see also FAR)" } (FAR{ XE "FAR (see also Federal Acquisition
Regulation)" }) – 48 CFR Parts 1 through 53
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These federal statutes touching on elements of the procurement
process, also do not apply to FDIC:
(1) Brooks Architects and Engineers Act – 40 USC §1101; (2)
Economy Act – 31 USC §1535; and (3) Veterans Benefit Act of 2003,
Section 308 – 15 USC §1657f.
1.208(c) Applicable Statutes and Executive Orders There are many
federal statutes that touch on elements of procurement that apply
to FDIC, such as wage and hour laws, certain laws establishing
socio-economic programs and laws governing ethics, privacy and
information security. Whether a particular federal statute applies
to the FDIC contracting program usually depends on whether FDIC
falls within the definition of the agencies to which a statute is
directed. Occasionally, FDIC voluntarily complies with a statute
which does not apply to it because doing so generally conforms to
FDIC policy, or promotes important new policy. Consult the CLU{ XE
"CLU (see also Contracting Law Unit)" } for additional guidance on
the applications of federal statutes to the FDIC contracting
program. All of the federal statutes and executive orders listed
below apply to FDIC when it contracts in its corporate{ XE
"contracting capacity - corporate" } capacity, but many do not
apply when FDIC contracts in its receivership{ XE "contracting
capacity - receivership" } or conservatorship{ XE "contracting
capacity - conservatorship" } capacities. The notation “corporate{
XE "contracting capacity - corporate" } capacity only”
distinguishes those statutes that do not apply to receivership{ XE
"contracting capacity - receivership" } and conservatorship{ XE
"contracting capacity - conservatorship" } contracts. The contract
thresholds and other factors that trigger application of a given
statute are described in the PGI.
(1) Labor Laws{ XE "labor laws" }: Service Contract Act{ XE
"Service Contract Act (see also SCA)" } of
1965 – 41 USC §351 et seq. (corporate{ XE "contracting capacity
- corporate" } capacity only);
Contract Work Hours and Safety Standards Act{ XE "Contract Work
Hours and Safety Standards Act" } – 40 USC §3701 et seq.
(corporate{ XE "contracting capacity - corporate" } capacity
only);
Davis-Bacon Act{ XE "Davis-Bacon Act (see also DBA)" } – 40 USC
§3141 et seq. (construction contracts) (corporate{ XE "contracting
capacity - corporate" } capacity only);
40 USC §3131 et seq. – formerly known as the Miller Act{ XE
"Miller Act" } –(construction contracts) (corporate{ XE
"contracting capacity - corporate" } capacity only); and
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Walsh-Healey Public Contracts Act – 41 USC §§35-45 (corporate{
XE "contracting capacity - corporate" } capacity only).
(2) Socio-Economic Programs: Buy American Act{ XE "Buy American
Act (see also BAA)" } – 41
USC §10a et seq. (partial); Trade Agreements Act{ XE "Trade
Agreements Act of 1979" } of
1979 – 19 USC §2501 et seq.; Rehabilitation Act of 1973 – 29 USC
§794d (commonly known as
Section 508); Javits-Wagner-O’Day Act – 41 USC §46 et seq.;{ XE
"Javits-Wagner-
O'Day Act (see also JWOD)" } Rehabilitation Act of 1973 – 29 USC
§793 (partial) (voluntary
compliance)(prohibits employment discrimination based on
physical or mental disabilities);
Executive Order 11246 – Equal Opportunity; FDIC Minority and
Women Outreach Program for Contracting – 12
USC §1833e and 12 CFR Part 361; Vietnam Era Veterans
Rehabilitation Act of 1972 – 38 USC §4212; Executive Order 12564 –
Drug Free Work Place (voluntary
compliance); Federal Prison Industries{ XE "Federal Prison
Industries (see also
FPI)" } - 18 USC §4124 (corporate{ XE "contracting capacity -
corporate" } capacity only); and
Small Business Act – 15 USC §644(e) (commonly known as the
contract bundling provision) (corporate{ XE "contracting capacity -
corporate" } capacity only).
(3) Privacy and Payment Laws: Privacy Act{ XE "Privacy Act of
1974" } of 1974{ XE "Privacy Act of
1974" } – 5 USC §552a{ XE "5 USC §552a" }; Prompt Payment Act{
XE "Prompt Payment Act (see also PPA)" } –
31 USC §3901-05 (corporate{ XE "contracting capacity -
corporate" } capacity only); and
Assignment of Claims{ XE "assignment of claims" } Act – 31 USC
§3727.
(4) Ethics and Integrity Laws: Anti-Kickback Act of 1986 – 41
USC §§51-58; Byrd Amendment – 31 USC §1352(b) (corporate{ XE
"contracting
capacity - corporate" } capacity only); Copeland (Anti-Kickback)
Act – 40 USC §3145 and 18 USC §874
(construction contracts) (corporate{ XE "contracting capacity -
corporate" } capacity only);
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FDI Act{ XE "FDI Act (see also Federal Deposit Insurance Act)" }
– 12 USC 1822 (f); and
Integrity and fitness standards for contractors – 12 CFR Part
366{ XE "12 CFR Part 366" }.
(5) Environmental Laws: Clean Air Act{ XE "Clean Air Act (see
also CAA)" } (CAA{ XE "CAA
(see also Clean Air Act)" }) of 1990 – 42 USC 7401 et seq.,
specifically 42 USC §7414 (air quality and emissions limitations;
inspection{ XE "inspection" } and monitoring of facilities related
to development of implementation plans for the control of emissions
or detection of violations of CAA standards) (construction
contracts only); and 42 USC §7671g, §7671h and §7671j (obligations
related to refrigeration equipment, air conditioning and
ozone-depleting substances); and
Clean Water Act{ XE "Clean Water Act (see also CWA)" } (CWA{ XE
"CWA (see also Clean Water Act)" }) – 33 USC §1251 et seq.,
specifically 33 USC §1318 (water pollution prevention and control;
maintenance of records and monitoring equipment at facilities to
assist in developing limitations on and treatment of effluence or
detection of violations of CWA standards) (construction contracts
only).
(6) Information Security Law: Federal Information Security
Management Act of 2002 – 44 USC §§ 3541-49.
(7) Tax Law: FDI Act{ XE "FDI Act (see also Federal Deposit
Insurance Act)" } - 12 USC §1825 - exempts FDIC from all federal,
state and local taxes, except taxes on real property.
(8) Suspension and Exclusion{ XE "exclusion" } of Contractors:
The standards and process for the suspension and exclusion{ XE
"exclusion" } of contractors are described in 12 CFR Part 367.
(9) Claims Process: Disputes{ XE "disputes" } arising from
certain receivership{ XE "contracting capacity - receivership" }
contracts are handled under the claims process set out in 12 USC
§1821(d).
(10) The Paperwork Reduction Act of 1980: Pub. L. 96-511 - In
compliance with the Paperwork Reduction Act, FDIC has obtained all
required Office of Management and Budget{ XE "Office of Management
and Budget" } information collection approvals. Details are
provided at PGI 1.208(c)(8).
(11) Other Federal Regulations: The federal regulations (except
the FAR{ XE "FAR (see also Federal Acquisition Regulation)" })
implementing the statutes listed above apply to FDIC procurements,
as well
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1.209 Contracting Officer Authority 1.209(a) Delegation of
Contracting Authority Contracts may be entered into and signed on
behalf of FDIC only by duly appointed Contracting Officers.
Contracting Officers operate under the authority of Certificates of
Appointment issued by the ASB Deputy Director. The certificate
establishes the scope and limits of a Contracting Officer’s
authority. Contracting authority is delegated to named individuals,
rather than to positions, based on the individual's education,
experience and training. 1.209(b) General Responsibilities{ XE
"Contracting Officer responsibilities" } Contracting Officers have
the exclusive authority to enter into, administer, and terminate
contracts and to make related decisions. Contracting Officers are
responsible for ensuring the performance of all actions necessary
for efficient and effective contracting, ensuring compliance with
the terms of contracts, and with protecting the interests of FDIC
in all of its contractual relationships. The Contracting Officer
may not enter into any contract unless all requirements of this APM
and the PGI, law, executive orders, regulations, and all other
applicable procedures and approvals have been met. Operating under
these guidelines (and, when necessary, seeking and gaining approval
for deviations{ XE "deviation" } from them), Contracting Officers
have latitude to exercise sound business judgment based on the
competitive and business needs of FDIC. In meeting these
responsibilities, Contracting Officers are expected to consult and
confer with the Program Office, CLU{ XE "CLU (see also Contracting
Law Unit)" } and others. Contracting Officers are also responsible
for managing contractor relationships by overseeing the integrity
and effectiveness of the contracting process, ensuring that all
contractors are treated in a business-like and objective manner,
and maintaining effective communications with contractors during
contract performance. Lastly, Contracting Officers must cooperate
with the Office of Inspector General{ XE "Office of Inspector
General (see also OIG)" } as required by FDIC Circular 12000.1,
Cooperation with the Office of Inspector General, which is
available at
https://fdicnet.fdic.gov/content/doa/home/rim/directives/directives-12000.html.
1.209(c) Procurement Request Authority Contracting Officers may
award contracts or orders against FDIC contractual agreements
subject to the limitations of their Contracting Officer Certificate
of Appointment, and up to the amount provided to them through
appropriately
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approved procurement requests, Accordingly, Contracting Officers
must ensure that an appropriately funded and approved procurement
request is received prior to releasing a solicitation. 1.209(d)
Contracting Officer Warrant Program Contracting Officers must be
fully qualified by education, experience and training in order to
be appointed as Contracting Officers, and to solicit, negotiate,
award, and administer contracts on behalf of FDIC. Continuous
learning requirements must also be met to maintain that
appointment. The ASB, Policy and Systems Section, is responsible
for management of the FDIC Contracting Officer Warrant Program
detailed at PGI 1.209(d). 1.210 Oversight Managers and Technical
Monitors The Contracting Officer may delegate certain
responsibilities to individuals to act on behalf of the Contracting
Office in overseeing general contractor performance and the
technical work of the contractor. These individuals are referred to
as Oversight Managers and Technical Monitors. The policies and
procedures discussed herein regarding Oversight Managers and
Technical Monitors also apply to Task Order Oversight Managers.
Because Oversight Managers and Technical Monitors are not duly
appointed Contracting Officers, they may not authorize contractors
to perform work or incur costs which are not specified in the
contract. Further information on contract oversight{ XE "contract
oversight" } management and the roles of the Oversight Manager and
Technical Monitor may be found at APM 6.4, Contract Administration{
XE "contract administration" } and Oversight Management{ XE
"oversight management" }. 1.211 Unauthorized Contractual
Commitments A contract is not binding when the FDIC representative
who made it lacked the authority to enter into that contract on
behalf of FDIC. This is otherwise known as an unauthorized
commitment. Unauthorized commitments may only be ratified when:
(1) The goods or service have been provided to and accepted by
FDIC, or FDIC has obtained or will obtain a benefit resulting from
performance of the unauthorized commitment;
(2) The Contracting Officer who ratifies the unauthorized
commitment has the authority to enter into a contractual
commitment;
(3) The resulting contract would otherwise have been proper if
made by an appropriate Contracting Officer;
(4) The Contracting Officer reviewing the unauthorized
commitment determines the price to be fair and reasonable{ XE "fair
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reasonable" }; (5) The Contracting Officer recommends payment
and CLU{ XE "CLU
(see also Contracting Law Unit)" } concurs with the
recommendation; and
(6) Funds are available. Procedures for ratification{ XE
"ratification" } of unauthorized commitments are found at PGI
1.211. 1.212 Purchase Card Authority The ASB Assistant Director,
Policy and Systems Section, is responsible for the overall
management of the FDIC P-Card Program and for issuing policy and
guidance for the program. Day-to-day management of the program is
the responsibility of the FDIC P-Card Agency Program Coordinator.
Contracting authority, limited to P-Card use, is delegated to
cardholders by the ASB Assistant Director, Policy and Systems
Section, and the FDIC P-Card Agency Program Coordinator, dependent
upon the dollar level. Policy and procedures for use of the card
and associated products are found at PGI Appendix C, FDIC Purchase
Card (P-Card) Guide.
*1.213 Conduct of Business by Electronic Means *
| It is the policy of the FDIC to conduct acquisition business
by electronic means as | | a preferred business practice to the
maximum extent possible. Acquisition business | | is defined as the
all-inclusive steps in the acquisition process, including market |
| research, solicitation, proposal submission, proposal review,
contract award, | * contract administration/contract modification
and contract closeout. *
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Ethics 1.2013 Scope This chapter covers FDIC policy on ethics
matters applicable to contractors, and Contracting Officers and the
Program Offices they support. 1.2014 Definitions Reserved 1.2015
Ethics Policy Contracting Officers and the Program Offices they
support must comply with the policy surrounding the ethics issues
discussed in this chapter in the award of contracts for FDIC.
1.2016 Minimum Standards of Contractor Integrity and Fitness{ XE
"minimum standards of contractor integrity and fitness" } FDIC
business is to be conducted in a manner above reproach and, except
as authorized by statute or regulation, with complete impartiality
and with preferential treatment for none. The general rule is to
avoid any conflict of interest{ XE "conflict of interest" } or even
the appearance of a conflict of interest in FDIC-contractor
relationships. While many federal laws and regulations place
restrictions on the actions of government personnel, their official
conduct must, in addition, be such that they would have no
reluctance to make a full public disclosure of their actions. The
ethical standards to which FDIC holds its contractors and
subcontractors are delineated in 12 CFR §366, which is available at
http://www.access.gpo.gov/nara/cfr/waisidx_08/12cfr366_08.html.
While this codification applies specifically to those contractors
and subcontractors performing service contracts{ XE "service
contract" }, FDIC expects all contractors and subcontractors to
perform using the highest ethical standards, reflecting the
integrity necessary to support and retain public trust and
confidence in our acquisition process. 1.2017 Disqualifying
Conditions FDIC does not contract for services with anyone who has
committed an act deemed to be a disqualifying condition. The
disqualifying conditions are set out
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in the Federal Deposit Insurance Act{ XE "Federal Deposit
Insurance Act (see also FDI Act)" } at 12 USC §1822(f) (4) and are
restated in the regulations at 12 CFR §366.3. They are:
(1) Conviction of a felony; (2) Removal from or being prohibited
from participation in the affairs of
an insured depository institution as a result of a federal
banking agency final enforcement action;
(3) Demonstration of a pattern or practice of defalcation{ XE
"defalcation" } or embezzlement on financial obligations to insured
depository institutions; or
(4) Causing a substantial loss to a federal deposit insurance{
XE "insurance" } fund.
1.2018 Conflicts of Interest The FDIC does not enter into, or
continue contracts with individuals or organizations that present
an unmitigated conflict of interest{ XE "conflict of interest" }.
If a conflict of interest exists, it precludes a contractor from
performing the contract unless the conflict is waived by FDIC or
the contractor eliminates it. Conflicts of interest can be either
individual or organizational. They most frequently arise when a
personal, business or financial interest of a contractor (or its
employee or subcontractor) is such that the contractor’s judgment
and loyalty in performing services for FDIC might be compromised by
concerns for pursuit of its own interest. Other conditions that
FDIC has identified as creating conflicts of interest are:
(1) Involvement in litigation adverse to FDIC, as a party or
representative of a party;
(2) Offering to buy an asset from FDIC for which services were
performed in the three years prior to the offer, unless provided
for in the contract for services; or
(3) Engaging in an activity that would cause FDIC to question
the integrity of the services a contractor has performed, is
performing, or offers to perform.
Conflicts of interest are covered in 12 CFR §366.10, which is
available at
http://www.access.gpo.gov/nara/cfr/waisidx_08/12cfr366_08.html.
1.2019 Suspension and Exclusion{ XE "exclusion" } of
Contractors
FDIC policy is to award contracts only to those firms that meet
the minimum standards set forth in APM 1.301-1.304. FDIC has the
authority, under 12 USC
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Section 1822(f), to suspend and to exclude a contractor or a
subcontractor from providing services to FDIC, if, upon notice and
hearing, FDIC determines the contractor has violated the integrity
and fitness standards or through other acts has shown itself to be
unsuitable to perform services or functions for FDIC. The specific
acts of ethical misconduct that give rise to suspension actions and
to exclusion{ XE "exclusion" } actions are laid out in 12 CFR Part
367, specifically Section 367.6 (exclusions) and Section 367.8
(suspensions), which is available at
http://www.access.gpo.gov/nara/cfr/waisidx_08/12cfr367_08.html.
1.2020 Other Consequences for Violation of Part 366 Besides the
administrative sanctions of suspension and exclusion{ XE
"exclusion" } from contracting with FDIC, a contractor or any other
party covered by Part 366 who violates Part 366 is subject to other
actions or sanctions, depending on the circumstance of the
violation. Other actions include criminal sanctions, civil actions
for damages, and rescission or termination of a contract. 1.2021
Roles and Responsibilities - Contractor Integrity and Fitness
Review 12 CFR Part 366{ XE "12 CFR Part 366" } requires FDIC
service contractors to meet the minimum standards of integrity and
fitness{ XE "minimum standards of contractor integrity and fitness"
}. Contracting Officers must include clauses and provisions that
convey the requirements of Part 366 in FDIC solicitations and
contracts as prescribed by the Policies, Guidance and Information
(PGI) document, except for contracts entered into by FDIC in which
it operates as an insured depository institution as a conservator
or as a bridge bank (12 CFR 366.2, which is available at
http://www.access.gpo.gov/nara/cfr/waisidx_08/12cfr366_08.html).
For guidance on Roles and Responsibilities – Contractor Integrity
and Fitness, see PGI 1.309. 1.222 Roles and Responsibilities –
Contractor Suspension and Exclusion{ XE "exclusion" } The FDIC
Legal Division{ XE "Legal Division" }, Contracting Law Unit{ XE
"Contracting Law Unit (see also CLU)" }, the Security Management
Section{ XE "Security Management Section" }, the FDIC Inspector
General and the FDIC designated Ethics Counselor have key roles and
responsibilities along with the ASB in matters pertaining to
suspension and exclusion{ XE "exclusion" } of contractors. See PGI
1.310 for further guidance and information.
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1.223 Standards of Conduct for FDIC Employees FDIC employees are
held to the highest standards of conduct in performing their
duties. The standards of conduct are set out in FDIC Circular
2410.6{ XE "FDIC Circular 2410.6" } – Standards of Ethical Conduct
For Employees of the FDIC – which incorporates the government-wide
standards of conduct in 5 CFR Part 2635. It is the employee’s
responsibility to become familiar with, and to comply with, these
standards. Employees who have questions regarding standards of
conduct may consult their Deputy Ethics Counselor or the
corporation’s Ethics Office, which can be accessed at
http://fdic01/division/legal/ethics/index.html. 1.224 Duty of
Non-Disclosure A contractor, and anyone else who performs services
on the behalf of FDIC, is obligated to maintain as confidential any
information it receives from FDIC. This means the contractor may
not use the information or disclose it to a third party,
unless:
(1) The contract or FDIC authorizes disclosure; (2) The
information is generally available to the public; or (3) FDIC makes
the information available to the general public.
The contractor’s duty of non-disclosure is set out in 12 CFR
Section 366.13. Further information on this subject may be found at
APM 5.1and PGI 5.1.
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APM Chapter 1.3 Controls against Personal Services Contracts and
Inherently Governmental Functions 1.301 Scope The chapter covers
FDIC policy on contracts for personal services{ XE "personal
services" } and performance of inherently governmental functions.
1.302 Definitions Inherently Governmental Function – A function
that is so intimately related to the public interest as to mandate
performance by government employees. These functions include those
activities that require either the exercise of discretion in
applying government authority or the making of value judgments in
making decisions for the government. Inherently governmental
functions normally fall into two categories: (1) the act of
governing, i.e., the discretionary exercise of government
authority, and (2) monetary transactions and entitlements.
Inherently governmental functions do not normally include gathering
information for or providing advice, opinions, recommendations, or
ideas to government officials. They also do not include functions
that are primarily ministerial and internal in nature, such as
building security; mail operations; operation of cafeterias;
housekeeping; facilities operations and maintenance, warehouse
operations, motor vehicle fleet management and operations, or
routine electrical or mechanical services. Personal Services
Contract – A contract that, either by its terms or the way it is
administered, makes contractor personnel appear to be FDIC
employees. 1.303 Contracts for Performance of Personal Services and
Inherently Governmental Functions Policy The policies regarding
contracts for personal services{ XE "personal services" }, and the
use of contractors to perform services in support of the
performance of inherently governmental functions, are detailed in
APM 1.404 and 1.405, respectively. 1.304 Personal Services
Contracts The award of contracts for personal services{ XE
"personal services" } is prohibited, unless specifically authorized
by statute. A contract for personal services can arise when the
terms of the contract or its actual performance create a situation
where:
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(1) FDIC employees are providing day-to-day supervision of
contractor personnel; or
(2) Contractor personnel{ XE "contractor personnel" } are
performing or engaging in a function that is inherent to the
mission of FDIC, that is, a function that is inherently
governmental.
1.404(a) Pre-Award Responsibilities The Contracting Officer{ XE
"Contracting Officer responsibilities" } is required to review all
requirement packages for services from the Program Office to ensure
that a contract for personal services{ XE "personal services" } is
not created. Further, both the Contracting Officer and the
Oversight Manager are required to periodically review contracts for
services to ensure that employer-employee relationships are not
established by FDIC with contractor personnel at any point during
the life of the contract. The following questions should be
considered when assessing whether a proposed contract for services
could be characterized as one for personal services:
(1) Are the services to be performed on site at an FDIC office
or facility? (2) Are the principal tools and equipment used to
perform the services
furnished by FDIC? (3) Do the services apply directly to the
integral effort of FDIC, or one of
its organizational subparts, in carrying out its mission or its
essential functions?
(4) Are comparable services, meeting comparable needs, performed
by civil service personnel at FDIC or at other agencies similar to
FDIC?
(5) Is the need for the services in question reasonably expected
to last beyond one (1) year?
(6) Does the inherent nature of the services in question, or the
manner in which they are provided, reasonably require FDIC to
direct or supervise contractor personnel, directly or indirectly,
in order to: Adequately protect FDIC interests; Retain control of
the function involved; or Keep full personal responsibility for the
function - being performed
by contractor personnel - in a duly authorized federal officer
or employee?
Any one of the factors outlined above does not in itself define
a requirement as one for personal services{ XE "personal services"
}. However, the combination of two or more of these factors in a
requirement may raise the specter that the services in question are
personal services. The Contracting Officer must carefully analyze
the factors and make a determination whether a contract for
personal services should be created. The Contracting Officer
consults the Contracting Law Unit{ XE "Contracting Law Unit (see
also CLU)" } (CLU{ XE
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"CLU (see also Contracting Law Unit)" }) when questions arise
regarding whether proposed services are considered personal in
nature.
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1.404(b) Post Award Responsibilities To further preclude the
creation of a prohibited employer-employee relationship between
FDIC and contractor personnel, and to preserve the independent
status of contractor personnel{ XE "contractor personnel" }, the
following precautions must be observed:
(1) FDIC employees must not directly or indirectly supervise
contractor personnel;
(2) Contractor personnel work stations must be separated from
FDIC employee work stations to the maximum extent practicable;
(3) Contractor personnel are required to wear badges on site at
FDIC offices or facilities, display office signs that identify them
as contractor personnel, and take other measures, as appropriate,
to clearly identify themselves as contractor personnel{ XE
"contractor personnel" };
(4) Contractor personnel must not be invited to attend regular
FDIC staff meetings; and
(5) Contractor personnel, in general, may not participate in
services provided for the benefit of FDIC employees, e.g.,
counseling and referral services or FDIC-employee recreational
activities, e.g., office picnics and holiday parties.
If an FDIC employee knows of facts in a particular services
contract that suggest the relationship between one or more FDIC
employees and contractor personnel is such that it appears a
contract for personal services{ XE "personal services" } may be
created, that individual should refer the matter to the Contracting
Officer. The Contracting Officer then seeks CLU{ XE "CLU (see also
Contracting Law Unit)" } review. 1.305 Inherently Governmental
Functions It is the policy of FDIC to:
(1) Prohibit the use of service contracts{ XE "service contract"
} for the performance of inherently governmental functions; and
(2) Provide greater scrutiny and an appropriate enhanced degree
of management oversight when contracting for functions that are not
inherently governmental, but closely support the performance of
inherently governmental functions. In using the products of
contracts that closely support the performance of inherently
governmental functions, the ASB and Program Office must ensure
that:
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Any final agency action complies with the laws and policies of
the United States and reflects the independent conclusions of FDIC
officials and not those of contractors who may have interests that
are not in concert with the public interest, and who may be beyond
the reach of management controls otherwise applicable to public
employees; and
Reasonable identification of contractors and the contractors’
work product is made whenever there is a risk that the public,
congress, or other persons outside of FDIC might confuse them with
FDIC officials or with an FDIC work product, respectively.
1.405(a) Inherently Governmental Functions Inherently
governmental functions include such things as:
(1) The determination of agency policy, such as determining the
content and application of regulations, among other things;
(2) The determination of federal program priorities or budget
requests; (3) The direction and control of federal employees; (4)
The selection or non-selection of individuals for Federal
Government
employment; (5) The approval of position descriptions and
performance standards for
federal employees; (6) The determination of what government
property is to be disposed of
and on what terms (although an agency may give contractors
authority to dispose of property at prices with specified ranges
and subject to other reasonable conditions deemed appropriate by
the agency);
(7) In federal procurement activities with respect to prime
contracts: Determining what supplies or services are to be acquired
by the
government (although an agency may give contractors authority to
acquire supplies at prices within specified ranges and subject to
other reasonable conditions deemed appropriate by the agency);
Participating as a voting member on any source selection boards;
Approval of any contractual document, to include documents
defining requirements, incentive plans and evaluation criteria{
XE "evaluation criteria" };
Awarding contracts; Performing contract administration functions
that involve ordering
changes in contract performance or contract quantities, taking
actions based on evaluations of contractor performance, and
accepting or rejecting contractor products or services);
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Terminating contracts; and Determining whether contract costs
are reasonable, allocable and
allowable. (8) The approval of agency responses to Freedom of
Information Act{
XE "Freedom of Information Act (see also FOIA)" } requests
(other than routine responses that, because of statute, regulation
or agency policy, do not require the exercise of judgment in
determining whether documents are to be released or withheld), and
the approval of agency responses to the administrative appeals{ XE
"appeal" } of denials of Freedom of Information Act requests;
(9) The conduct of administrative hearings to determine the
eligibility of any person for a security clearance, or involving
actions that affect matters of personal reputation or eligibility
to participate in government programs; and.
(10) The determination of budget policy, guidance, and strategy.
1.405(b) Not Inherently Governmental Functions A list of services
and actions that are considered not to be inherently governmental
functions follows. While not considered to be inherently
governmental functions, these services and actions may approach
being in that category because of the way in which the contractor
performs the contract or the manner in which FDIC administers
contractor performance. When contracting for such services and
actions, FDIC must be fully aware of the terms of the contract,
contractor performance and contract administration{ XE "contract
administration" } to ensure that appropriate FDIC control is
preserved. This is an illustrative listing, and is not intended to
promote or discourage their use:
(1) Services that involve or relate to budget preparation,
including workload modeling, fact finding, efficiency studies, and
should-cost analyses, etc.;
(2) Services that involve or relate to reorganization and
planning activities;
(3) Services that involve or relate to analyses, feasibility
studies, and strategy options{ XE "option" } to be used by agency
personnel in developing policy;
(4) Services that involve or relate to the development of
regulations; (5) Services that involve or relate to the evaluation
of another
contractor's performance; (6) Services in support of acquisition
planning;
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(7) Contractors' providing assistance in contract management
(such as where the contractor might influence official evaluations
of other contractors);
(8) Contractors' providing technical evaluation of contract
proposals; (9) Contractors' providing assistance in the development
of statements
of work; (10) Contractors' providing support in preparing
responses to Freedom of
Information Act{ XE "Freedom of Information Act (see also FOIA)"
} requests;
(11) Contractors' working in any situation that permits or might
permit them to gain access to confidential business information
and/or any other sensitive information{ XE "sensitive information"
};
(12) Contractors' providing information regarding agency
policies or regulations, such as attending conferences on behalf of
an agency, conducting community relations campaigns, or conducting
agency training courses;
(13) Contractors' participating in any situation where it might
be assumed that they are agency employees or representatives;
(14) Contractors' participating as technical advisors to a
source selection board or participating as voting or nonvoting
members of a source evaluation board;
(15) Contractors' serving as arbitrators or providing
alternative methods of dispute{ XE "disputes" } resolution;
(16) Contractors' constructing buildings or structures intended
to be secure from electronic eavesdropping or other penetration by
foreign governments;
(17) Contractors' providing inspection{ XE "inspection" }
services; (18) Contractors' providing legal advice and
interpretations of regulations
and statutes to government officials; and (19) Contractors'
providing special non-law enforcement, security
activities that do not directly involve criminal investigations,
such as prisoner detention or transport and non-military national
security details.
Office of Management and Budget{ XE "Office of Management and
Budget" } Circular No A-76, while not specifically applicable to
FDIC, provides detailed guidance on the identification of
inherently governmental activities. The Office of Federal
Procurement Policy Letter 92-1, Inherently Governmental Functions,
provides background information regarding inherently governmental
functions which assists Program Offices and Contracting Officers in
making decisions regarding whether a function may be performed by
contractor personnel.
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MODULE 2: ACQUISITION PLANNING AND COMPETITION
APM Chapter 2.1 Acquisition Planning 2.101 Scope This chapter
covers the policy on acquisition planning. 2.102 Definitions
Reserved 2.103 Acquisition Planning Policy The policies for
acquisition planning are set forth in the following paragraphs.
2.104 Early Acquisition Planning Program Offices must coordinate
with the ASB as soon as a potential procurement need is identified
and support the acquisition planning process. Close coordination
and early planning between the Program Office, Contracting Officer,
and other members of the Acquisition Team are essential for
effective and efficient procurement. 2.105 Market Research FDIC
Program Offices and the Contracting Officer must work together to
conduct market research to support all acquisition planning. Market
research{ XE "market research" } involves obtaining information and
knowledge about the different types of goods or services in the
commercial marketplace, and their availability and pricing. Market
research{ XE "market research" } can also identify the type and
extent of competition{ XE "competition" } that may exist for a
product or service. This is done to keep abreast of marketplace
changes and trends when there is no specific procurement
identified, or to identify firms that may offer the goods and/or
services required by FDIC for current or future procurements.
Market research{ XE "market research" } also plays an important
role in obtaining the approvals for capital investment projects by
supporting the development of a cost benefit analysis and
determining the extent of competition{ XE "competition" } for the
required products or services. If market research identifies only
one
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potential source for requirements estimated above $10,000,
non-competitive contracting procedures, as discussed in PGI 2.206
may be used. 2.106 Acquisition Plan{ XE "Acquisition Plan" }
Documentation The Acquisition Plan{ XE "Acquisition Plan" }
documents the course of action for the procurement and is developed
jointly by the Program Office and the Contracting Officer beginning
with early acquisition planning, as described above. Written
Acquisition Plans must be prepared for all acquisitions $1,000,000
or more using the format at PGI 2.106. While written plans are not
required below that level, reasonable planning is expected for all
procurement actions. 2.107 Requirements Package{ XE "requirements
package" } A significant part of acquisition planning is assembling
the requirements package{ XE "requirements package" }. The
requirements package consists of all the documents and information
needed to produce a solicitation or contract to fulfill a
requirement. The core documents in the requirements package are the
approved requisition; the statement of work{ XE "statement of work"
} or statement of objectives{ XE "statement of objectives (see also
SOO)" }; and the independent FDIC cost estimate. The Program Office
must provide ASB with the complete requirements package, including
other documents identified by ASB as essential to initiate the
procurement action. Program Office officials should hold early
strategy sessions with ASB Contracting Officers to identify the
other types of documentation needed to support a specific
procurement action. Particular attention should be given to early
coordination if the action involves information security and
business continuity requirements. The requirements package
checklist must be completed for every requirement over $100,000 and
filed in the official contract file{ XE "official contract file" }.
The checklist may be found on the ASB website at
https://fdicnet.fdic.gov/content/dam/DOA/documents/buying/contractplanningguide/requirements_package_checklist.docx.
Further guidance on requirements packages may be found at PGI
2.107. 2.108 Socioeconomic Programs FDIC policy is to encourage use
of minority and women-owned businesses{ XE "minority and
women-owned business (see also MWOB)" } (MWOBs{ XE "MWOB (see also
minority and women-owned business)" }), and small disadvantaged
businesses{ XE "small disadvantaged business (see also SDB)" }
(SDBs{ XE "SDB (see also small disadvantaged business)" }) concerns
in the acquisit